[1] Gregory IX was four years Pope before he enacted these new laws.
[2] Cap. ii,Mon. Germ., Leges, sect. iv, vol. ii, p. 196.
About the same time, Annibale, the Senator of Rome, established the new jurisprudence of the Church in the eternal city. Every year, on taking office, the Senator was to banish (diffidare) all heretics. All who refused to leave the city were, eight days after their condemnation, to receive the punishment they deserved. The penalty,animadversio debita, is not specified, as if every one knew what was meant.
Inasmuch as reluctant heretics were imprisoned for life, it seems certain that the severer penalty reserved for obstinate heretics must have been the death penalty of the stake, for that was the mode of punishment decreed by the imperial law of 1224, which had just been copied on the registers of the papal chancery. But we are not left to mere conjecture. In February, 1231, a number of Patarins were arrested in Rome; those who refused to abjure were sent to the stake, while those who did abjure were sent to Monte Cassino and Cava to do penance. This case tells us instantly how we are to interpret theanimadversio debitaof contemporary documents.
Frederic II exercised an undeniable influence over Gregory IX, and the Pope in turn influenced the emperor. Gregory wrote denouncing the many heretics who swarmed throughout the kingdom of Sicily (the two Sicilies), especially in Naples and Aversa, urging him to prosecute them with vigor. Frederic obeyed. He was then preparing his Sicilian Code, which appeared at Amalfi in August, 1231. The first law,Inconsutilem tunicam, was against heretics. The emperor did not have to consult any one about the penalty to be decreed against heresy; he had merely to copy his own law, enacted in Lombardy in 1224. This new law declared heresy a crime against society on a par with treason, and liable to the same penalty. And that the law might not be a dead letter for lack of accusers, the state officials were commanded to prosecute it just as they would any other crime. This was in reality the beginning of the Inquisition. All suspects were to be tried by an ecclesiastical tribunal, and if, being declared guilty, they refuse to abjure, they were to be burned in the presence of the people.[1]
[1]Constitut. Sicil., i, 3, in Eymeric,Directorium inquisitorum, Appendix, p. 14.
Once started on the road to severity, Frederic II did not stop. To aid Gregory IX in suppressing heresy, he enacted at Ravenna, in 1237, an imperial law condemning all heretics to death.[1] The kind of death was not indicated. But every one knew that the common German custom of burning heretics at the stake had now become the law. For by three previous laws, May 14, 1238, June 26, 1238, and February 22, 1239, the emperor had declared that the Sicilian Code and the law of Ravenna were binding upon all his subjects; the law of June 26, 1238, merely promulgated these other laws throughout the kingdom of Arles and Vienne. Henceforth all uncertainty was at an end. The legal punishment for heretics throughout the empire was death at the stake.
[1]Mon. Germ., Leges, sect. iv, vol. ii, pp. 196.
Gregory IX did not wait for these laws to be enacted to carry out his intentions.
As early as 1231 he tried to have the cities of Italy and Germany adopt the civil and canonical laws in vogue at Rome against heresy, and he was the first to inaugurate that particular method of prosecution, the permanent tribunal of the Inquisition.
We possess some of the letters which he wrote in June, 1231, urging the bishops and archbishops to further his plans. He did not meet with much success, however, although the Dominicans and the Friars Minor did their best to help him. Still some cities like Milan, Verona, Piacenza and Vercelli adopted the measures of persecution which he proposed. At Milan, Peter of Verona, a Dominican, on September 15, 1233, had the laws of the Pope and the Senator of Rome inscribed in the city's statutes. Theanimadversio debitawas henceforth interpreted to mean the penalty of the stake. "In this year," writes a chronicler of the time, "the people of Milan began to burn heretics." In the month of July, sixty heretics were sent to the stake at Verona. The podestà of Piacenza sent to the Pope the heretics he had arrested. Vercelli, at the instance of the Franciscan, Henry of Milan, incorporated in 1233 into its statutes the law of the Senator of Rome and the imperial law of 1224; it, however, omitted in the last named law the clause which decreed the penalty of cutting out the tongue. In Germany, the Dominican, Conrad of Marburg, was particularly active, in virtue of his commission from Gregory IX. In accordance with the imperial law, we find him sentencing to the stake a great number of heretics.
It may be admitted, however, that in his excessive zeal he even went beyond the desires of the sovereign pontiff. Gregory IX did not find everywhere so marked an eagerness to carry out his wishes. A number of the cities of Italy for a long time continued to punish obstinate heretics according to the penal code of Innocent III, i.e., by banishment and confiscation.
That the penalty of the stake was used at this time in France is proved by the burning of one hundred and eighty-three Bulgarians or Bugres at Mont-Wimer in 1239 and by two important documents, theÉtablissements de Saint Louisand theCoutumes de Beauvaisis.
"As soon as the ecclesiastical judge has discovered, after due examination, that the suspect is a heretic, he must hand him over to the secular arm; and the secular judge must send him to the stake."[1] Beaumanoir says the same thing: "In such a case, the secular court must aid the Church; for when the Church condemns any one as a heretic, she is obliged to hand him over to the secular arm to be sent to the stake; for she herself cannot put any one to death."[2]
[1]Établissements de Saint Louis, ch. cxxiii.
[2]Coutumes de Beauvaisis, xi, 2; cf. xxx, 11, ed. Beugnot, vol. i, pp. 157, 413.
It is a question whether this legislation is merely the codification of the custom introduced by popular uprisings against heresy and by certain royal decrees, or whether it owes its origin to the law of Frederic II which Gregory IX tried to enforce in France, as he had done in Germany and Italy. This second hypothesis is hardly probable. The tribunals of the Inquisition did not have to import into France the penalty of the stake; they found it already established in both central and northern France.
In fact, Gregory IX urged everywhere the enforcement of the existing laws against heresy, and where none existed he introduced a very severe system of prosecution. He was the first, moreover, to establish an extraordinary and permanent tribunal for heresy trials—an institution which afterwards became known as the monastic Inquisition.
. . . . . . . .
The prosecution and the punishment of heretics in every diocese was one of the chief duties of the bishops, the natural defenders of orthodoxy. While heresy appeared at occasional intervals, they had little or no difficulty in fulfilling their duty. But when the Cathari and the Patazins had sprung up everywhere, especially in southern Italy and France and northern Spain, the secrecy of their movements made the task of the bishop extremely hard and complicated. Rome soon perceived that they were not very zealous in prosecuting heresy. To put an end to this neglect, Lucius III, jointly with the Emperor Frederic Barbarossa and the bishops of his court, enacted a decretal at Verona in 1184, regulating theepiscopal inquisition.
All bishops and archbishops were commanded to visit personally once or twice a year, or to empower their archdeacons or other clerics to visit, every parish in which heresy was thought to exist. They were to compel two or three trustworthy men, or, if need be, all the inhabitants of the city, to swear that they would denounce every suspect who attended secret assemblies, or whose manner of living differed from that of the ordinary Catholic. After the bishop had questioned all who had been brought before his tribunal, he was empowered to punish them as he deemed fit, unless the accused succeeded in establishing their innocence. All who superstitiously refused to take the required oath (we have seen how the Cathari considered it criminal to take an oath) were to be condemned and punished as heretics, and if they refused to abjure they were handed over to the secular arm.[1] This was an attempt to recall the bishops to a sense of their duty. The Lateran Council of 1215 re-enacted the laws of Lucius III; and to ensure their enforcement it decreed that every bishop who neglected his duty should be deposed, and another consecrated in his place.[2] The Council of Narbonne in 1227 likewise ordered the bishop to appoint synodal witnesses (testes synodales) in every parish to prosecute heretics.[3] But all these decrees, although properly countersigned and placed in the archives, remained practically a dead letter. In the first place it was very difficult to obtain the synodal witnesses. And again, as a contemporary bishop, Lunas de Tuy, assures us, the bishops for the most part were not at all anxious to prosecute heresy. When reproached for their inaction they replied: "How can we condemn those who are neither convicted nor confessed?"[4]
[1] Lucius III, Ep. clxxl, Migne, P.L., vol. cci, col. 1297 and seq.
[2] The BullExcommunicamus, Decretals, cap. xiii, in fine,De hæreticis, lib. v, tit. vii.
[3] Can. 14, Labbe,Concilia, vol. xi, pars i, col. 307, 308.
[4] Lucas Tudensis,De altera vita fideique controversiis adversus Albigensium errores, cap. xix, in theBibliotheca Patrum, 4 ed. vol. iv, col. 575-714. Lucas was Bishop of Tuy in Galicia, from 1239 to 1249.
The Popes, as the rulers of Christendom, tried to make up for the indifference of the bishops by sending their legates to hunt for the Cathari in their most hidden retreats. But they soon realized that this legatine inquisition was ineffective.[1]
[1] Cf. Lea, op. cit., vol. i, p. 315 and seq.
"Bishop and legate," writes Lea, "were alike unequal to the task of discovering those who carefully shrouded themselves under the cloak of the most orthodox observance; and when by chance a nest of heretics was brought to light, the learning and skill of the average Ordinary failed to elicit a confession from those who professed the most entire accord with the teachings of Rome. In the absence of overt acts, it was difficult to reach the secret thoughts of the sectary. Trained experts were needed whose sole business it should be to unearth the offenders, and extort a confession of their guilt."
At an opportune moment, therefore, two mendicant orders, the Dominicans and the Franciscans, were instituted to meet the new needs of the Church. Both orders devoted themselves to preaching; the Dominicans were especially learned in the ecclesiastical sciences, i.e., canon law and theology.
"The establishment of these orders," continues Lea, "seemed a providential interposition to supply the Church of Christ with what it most sorely needed. As the necessity grew apparent of special and permanent tribunals, devoted exclusively to the widespread sin of heresy, there was every reason why they should be wholly free from the local jealousies and enmities which might tend to the prejudice of the innocent, or the local favoritism which might connive at the escape of the guilty. If, in addition to this freedom from local partialities, the examiners and judges were men specially trained to the detection and conversion of the heretics; if also, they had by irrevocable vows renounced the world; if they could acquire no wealth, and were dead to the enticement of pleasure, every guarantee seemed to be afforded that their momentous duties would be fulfilled with the strictest justice—that while the purity of the faith would be protected, there would be no unnecessary oppression or cruelty or persecution dictated by private interests and personal revenge. Their unlimited popularity was also a warrant that they would receive far more efficient assistance in their arduous labors than could be expected by the bishops, whose position was generally that of antagonism to their flocks, and to the petty seigneurs and powerful barons whose aid was indispensable."[1]
[1] Lea, op. cit., pp. 318, 319.
Gregory IX fully understood the help that the Dominicans andFranciscans could render him as agents of the Inquisition throughoutChristendom.
It is probable that, the Senator of Rome refers to them in his oath in 1231, when he speaks of theInquisitores datos ab Ecclesia.[1] Frederic II, in his law of 1232, also mentions the _Inquisitores ab apostolica sede datos.[2] The Dominican Albéric traveled through Lombardy in November, 1232, with the title of _Inquisitor hereticæ pravitatis.[3] In 1231 a similar commission was entrusted to the Dominicans of Freisach and to the famous Conrad of Marburg. Finally, to quote but one more instance, Gregory IX, in 1233, wrote an eloquent letter to the bishops of southern France in which he said: "We, seeing you engrossed in the whirlwind of cares, and scarce able to breathe in the pressure of overwhelming anxieties, think it well to divide your burdens, that they may be more easily borne. We have therefore determined to send preaching friars against the heretics of France and the adjoining provinces, and we beg, warn, and exhort you, ordering you, as you reverence the Holy See, to receive them kindly, and to treat them well, giving them in this as in all else, favor, counsel, and aid, that they may fulfill their office."
[1] Raynaldi,Annales, ad ann. 1231, sect. 16, 17.
[2] Cap. iii, in theMon. Germ., Leges, sect. iv, vol. ii, p. 196.
[3] Potthast,Regesta Roman. Pontif., no. 904, 1.
Their duties are outlined in a letter of Gregory IX to Conrad of Marburg, October 11, 1231: "When you arrive in a city, summon the bishops, clergy and people, and preach a solemn sermon on faith; then select certain men of good repute to help you in trying the heretics and suspects denounced before your tribunal. All who on examination are found guilty or suspected of heresy must promise to absolutely obey the commands of the Church; if they refuse, you must prosecute them, according to the statutes which we have recently promulgated." We have in these instructions all the procedure of the Inquisition: the time of grace; the call for witnesses and their testimony; the Interrogation of the Accused; the reconciliation of repentant heretics; the condemnation of obdurate heretics.
Each detail of this procedure calls for a few words of explanation.
The Inquisitor first summoned every heretic of the city to appear before him within a certain fixed time, which as a rule did not exceed thirty days. This period was called "the time of grace" (tempus gratiæ). The heretics who abjured during this period were treated with leniency. If secret heretics, they were dismissed with only a slight secret penance; if public heretics, they were exempted from the penalties of death and life imprisonment, and sentenced either to make a short pilgrimage, or to undergo one of the ordinary canonical penances.
If the heretics failed to come forward of their own accord, they were to be denounced by the Catholic people. At first the number of witnesses required to make an accusation valid was not determined; later on two were declared necessary. In the beginning, the Inquisition could only accept the testimony of men and women of good repute; and the Church for a long time maintained that no one should be admitted as an accuser who was a heretic, was excommunicated, a homicide, a thief, a sorcerer, a diviner, or the bearer of false witness. But her hatred of heresy led her later on to set aside this law, when the faith was in question. As early as the twelfth century, Gratian had declared that the testimony of infamous and heretical witnesses might be accepted in trials for heresy.[1]
[1] Pars ii,Causaii, quaest. vii, cap. xxii;Causavi, quaest. i, cap. xix.
The edicts of Frederic II declared that heretics could not testify in the courts, but this disability was removed when they were called upon to testify against other suspects.[1] In the beginning, the Inquisitors were loath to accept such testimony. But in 1261 Alexander IV assured them that it was lawful to do so.[2] Henceforth the testimony of a heretic was considered valid, although it was always left to the discretion of the Inquisition to reject it at will. This principle was finally incorporated into the canon law, and was enforced by constant practice. All legal exceptions were henceforth declared inoperative except that of moral enmity.[3]
[1]Historia diplomatica Frederici II, vol. iv, pp. 299, 300.
[2] BullConsuluit, of January 23, 1261, in Eymeric,Directorium inquisitorum, Appendix, p. 40.
[3] Eymeric, ibid., 3a pars, quæst. lxvii, pp. 606, 607. Pegna, ibid., pp. 607, 609, declares that great cruelty or even insulting words—e.g., to call a mancornutusor a womanmeretrix—might come under the head of enmity, and invalidate a man's testimony.
Witnesses for the defence rarely presented themselves. Very seldom do we come across any mention of them. This is readily understood, for they would almost inevitably have been suspected as accomplices and abettors of heresy. For the same reason, the accused were practically denied the help of counsel. Innocent III had forbidden advocates and scriveners to lend aid or counsel to heretics and their abettors.[1] This prohibition, which in the mind of the Pope was intended only for defiant and acknowledged heretics, was gradually extended to every suspect who was striving to prove his innocence.[2]
[1] Decretals, cap. xi,De hæreticis, lib.. v, tit. vii.
[2] Eymeric,Directorium inquisitorum, 3a pars, quaest. xxxix, p. 565; cf. 446. Sometimes, however, the accused was granted counsel, butjuxta juris formam ac stylum et usum officii Inquisitionis; cf. Vidal,Le tribunal d'Inquisition, in theAnnales de Saint Louis des Français, vol. ix (1905), p. 299, note. Eymeric himself grants one (Directorium, pp. 451-453). But this lawyer was merely to persuade his client to confess his heresy; he was rather the lawyer of the court than of the accused. Vidal, op. cit., pp. 302, 303. Pegna, however, says (in EymericDirectorium, 2a pars, ch. xi, Comm. 10) that in his time the accused was allowed counsel, if he were only suspected of heresy. Cf. Tanon, op. cit., pp. 400, 401.
Heretics or suspects, therefore, denounced to the Inquisition generally found themselves without counsel before their judges.
They personally had to answer the various charges of the indictment (capitula) made against them. It certainly would have been a great help to them, to have known 'the names of their accusers. But the fear—well-founded it was true[1]—that the accused or their friends would revenge themselves on their accusers, induced the Inquisitors to withhold the names of the witnesses.[2] The only way in which the prisoner could invalidate the testimony against him was to name all his mortal enemies. If his accusers happened to be among them, their testimony was thrown out of court.[3] But otherwise, he was obliged to prove the falsity of the accusations against him—a practically impossible undertaking. For if two witnesses, considered of good repute by the Inquisitor, agreed in accusing the prisoner, his fate was at once settled; whether he confessed or not, he was declared a heretic.
[1] Guillem Pelhisse tells us that the Cathari sometimes killed those who had denounced their brethren.Chronique, ed. Douai, p. 90. A certain Arnold Dominici, who had denounced seven heretics, was killed at night in his bed by "the Believers."Ibid., pp. 98, 99.
[2] Eymeric,Directorium, 3a pars, q. 72. The law on this point varied from time to time. When Boniface VIII incorporated into the canon law the rule of withholding the names of witnesses, he expressly said that they might be produced, if there was no danger in doing so. Cap. 20, Sexto v, 2.
[3] Eymeric,Directorium, 3a pars,De defensionibus reorum, p. 446 and seq.
After the prisoner had been found guilty, he could choose one of two things; he could abjure his heresy and manifest his repentance by accepting the penance imposed by his judge, or he could obstinately persist either in his denial or profession of heresy, accepting resolutely all the consequences of such an attitude.
If the heretic abjured he knelt before the Inquisitor as a penitent before his confessor. He had no reason to fear his judge. For, properly speaking, he did not inflict punishment.
"The mission of the Inquisition," writes Lea, "was to save men's souls; to recall them to the way of salvation, and to assign salutary penance to those who sought it, like a father-confessor with his penitent. Its sentences, therefore, were not like those of an earthly judge, the retaliation of society on the wrongdoer, or deterrent examples to prevent the spread of crime; they were simply imposed for the benefit of the erring soul, to wash away its sin. The Inquisitors themselves habitually speak of their ministrations in this sense."[1]
[1] Lea, op. cit., p. 459.
But "the sin of heresy was too grave to be expiated simply by contrition and amendment."[1] The Inquisitor, therefore, pointed out other means of expiation: "The penances customarily imposed by the Inquisition were comparatively few in number. They consisted, firstly, of pious observances—recitation of prayers, frequenting of churches, the discipline, fasting, pilgrimages, and fines nominally for pious uses,—such as a confessor might impose on his ordinary penitents." These were for offences of trifling import. "Next in grade are thepoenae confusibiles,—the humiliating and degrading penances, of which the most important was the wearing of yellow crosses sewed upon the garments; and, finally, the severest punishment among those strictly within the competence of the Holy Office, themurusor prison."[2]
[1] Lea, ibid., p. 463.
[2] Lea, ibid., p. 462.
If the heretic refused to abjure, his obduracy put an end to the judge's leniency, and withdrew him at once from his jurisdiction.
"The Inquisitor never condemned to death, but merely withdrew the protection of the Church from the hardened and impenitent sinner who afforded no hope of conversion, or from him who showed by relapse that there was no trust to be placed in his pretended repentance."[1]
[1] Lea, ibid., p. 460.
It was at this juncture that the State intervened. The ecclesiastical judge handed over the heretic to the secular arm, which simply enforced the legal penalty of the stake. However, the law allowed the heretic to abjure even at the foot of the stake; in that case his sentence was commuted to life imprisonment.
It is hard to conceive of a greater responsibility than that of a mediæval Inquisitor. The life or death of the heretic was practically at his disposal. The Church, therefore, required him to possess in a pre-eminent degree the qualities of an impartial judge. Bernard Gui, the most experienced Inquisitor of his time (1308-1323), thus paints for us the portrait of the ideal Inquisitor: "He should be diligent and fervent in his zeal for religious truth, for the salvation of souls, and for the destruction of heresy. He should always be calm in times of trial and difficulty, and never give way to outbursts of anger or temper. He should be a brave man, ready to face death if necessary, but while never cowardly running from danger, he should never be foolhardy rushing into it. He should be unmoved by the entreaties or the bribes of those who appear before his tribunal; still he must not harden his heart to the point of refusing to delay or mitigate punishment, as circumstances may require from time to time.
"In doubtful cases, he should be very careful not to believe too easily what may appear probable, and yet in reality is false; nor, on the other hand, should he stubbornly refuse to believe what may appear improbable, and yet is frequently true. He should zealously discuss and examine every case, so as to be sure to make a just decision…. Let the love of truth and mercy, the special qualities of every good judge, shine in his countenance, and let his sentences never be prompted by avarice or cruelty."[1]
[1]Practica Inquisitionis, pars 6a, ed. Douais, 1886, pp. 231-233.
This portrait corresponds to the idea that Gregory IX had of the true Inquisitor. In the instructions which he gave to the terrible Conrad of Marburg, October 21, 1223, he took good care to warn him to be prudent as well as zealous: "Punish if you will," he said, "the wicked and perverse, but see that no innocent person suffers a your hands:"ut puniatur sic temeritas perversorum, quod innocentiæ puritas non lædatur. Gregory IX cannot be accused of injustice, but he will ever be remembered as the Pope who established the Inquisition as a permanent tribunal, and did his utmost to enforce everywhere the death penalty for heresy.
This Pope was, in certain respects, a very slave to the letter of the law. The protests of St. Augustine and many other early Fathers did not affect him in the least. In the beginning, while he was legate, he merely insisted upon the enforcement of the penal code of Innocent III, which did not decree any punishment severer than banishment, but he soon began to regard heresy as a crime similar to treason, and therefore subject to the same penalty, death. Certain ecclesiastics of his court with extremely logical minds, and rulers like Pedro II of Aragon and Frederic II, had reached the same conclusion, even before he did. Finally, in the fourth year of his pontificate, and undoubtedly after mature deliberation, he decided to compel the princes and the podestà to enforce the law condemning heretics to the stake.
He did his utmost to bring this about. He did not forget, however, that the Church could not concern herself in sentences of death. In fact, his law of 1231 decrees that: "Heretics condemned by the Church are to be handed over to the secular courts to receive due punishment (animadversio debita)."[1] The emperor Frederic II had the same notion of the distinction between the two powers. His law of 1224 points out carefully that heretics convicted by an ecclesiastical trial are to be burned in the name of the civil authority:auctoritate nostra ignis judicio concremandus.[2] The imperial law of 1232 likewise declares that heretics condemned by the Church are to be brought before a secular tribunal to receive the punishment they deserve.[3] This explains why Gregory IX did not believe that in handing over heretics to the secular arm he participated directly or indirectly in a death sentence.[4] The tribunals of the Inquisition which he established in no way modified this concept of ecclesiastical justice. The Papacy, the guardian of orthodoxy for the universal Church, simply found that the Dominicans and the Franciscans were more docile instruments than the episcopate for the suppresion of heresy. But whether the Inquisition was under the direction of the bishops or the monks, it could have been conducted on the same lines.
[1]Decretales, cap. xv,De Hæreticis, lib. v, tit. vii.
[2]Mon. Germ., Leges, sect. iv, vol. ii, p. 126.
[3] Ibid., p. 196.
[4] Lea writes (op. cit., vol. i, p. 536, note): "Gregory IX had no scruple in asserting the duty of the Church to shed the blood of heretics." In a brief of 1234 to the Archbishop of Sens, he says:Nec enim decuit Apostolicam Sedem, in oculis suis cum Madianita coeunte Judæo, manum suam a sanguine prohibere, ne si secus ageret non custodire populum Israel … videretur. Ripoll, i, 66. This is certainly a serious charge, but the citation he gives implies something altogether different. Lea has been deceived himself, and in turn has misled his readers, by a comparison which he mistook for a doctrinal document. The context, we think, clearly shows that the Pope was making a comparison between the Holy See and the Jewish leader Phinees, who had slain an Israelite and a harlot of Madian, in the very act of their crime (Num. xxv. 6, 7). That does not imply that the Church use the same weapons. Even if the comparison is not a very happy one, still we must not exaggerate its import. The Pope's letter did not even mention the execution of heretics. Ripoll,Bullarium ord. FF. Prædicatorum, vol. 1, p. 66.
But, as a matter of fact, it unfortunately changed completely under the direction of the monks. The change effected by them in the ecclesiastical procedure resulted wholly to the detriment of the accused. The safeguards for their defense were in part done away with. A pretense was made to satisfy the demands of justice by requiring that the Inquisitors be prudent and impartial judges. But this made everything depend upon individuals, whereas the law itself should have been just and impartial. In this respect, the criminal procedure of the Inquisition is markedly inferior to the criminal procedure of the Middle Ages.
The successors of Gregory IX were not long in perceiving certain defects in the system of the Inquisition. They tried their best to remedy them, although their efforts were not always directed with the view of mitigating its rigor. We will indicate briefly their various decrees pertaining to the tribunals, the penalties and the procedure of the Inquisition.
In appointing the Dominicans and the Franciscans to suppress heresy, Gregory IX did not dream of abolishing the episcopal Inquisition. This was still occasionally carried on with its rival, whose procedure it finally adopted. Indeed no tribunal of the Inquisition could operate in a diocese without the permission of the Bishop, whom it was supposed to aid. But it was inevitable that the Inquisitors would in time encroach upon the episcopal authority, and relying upon their papal commission proceed to act as independent judges. This abuse frequently attracted the attention of the Popes, who, after some hesitation, finally settled the law on this point.
"If previous orders requiring it" (episcopal concurrence), writes Lea, "had not been treated with contempt, Innocent IV would not have been obliged, in 1254, to reiterate the instructions that no condemnations to death or life imprisonment should be uttered without consulting the Bishops; and in 1255 he enjoined Bishop and Inquisitor to interpret in consultation any obscurities in the laws against heresy, and to administer the lighter penalties of deprivation of office and preferment. This recognition of episcopal jurisdiction was annulled by Alexander IV, who, after some vacillation, in 1257 rendered the Inquisition independent by releasing it from the necessity of consulting with the Bishops even in cases of obstinate and confessed heretics, and this he repeated in 1260. Then there was a reaction. In 1262, Urban IV, in an elaborate code of instructions, formally revived the consultation in all cases involving the death penalty or perpetual imprisonment; and this was repeated by Clement IV in 1265. Either these instructions, however, were revoked in some subsequent enactment, or they soon fell into desuetude, for in 1273, Gregory X, after alluding to the action of Alexander IV in annulling consultation, proceeds to direct that Inquisitors in deciding upon sentences shall proceed in accordance with the counsel of the Bishops or their delegates, so that the episcopal authority might share in decisions of such moment."[1]
[1] Lea, op. cit., p. 335.
This decretal remained henceforth the law. But as the Inquisitors at times seemed to act as if it did not exist, Boniface VIII and Clement IV strengthened it by declaring null and void all grave sentences in which the Bishop had not been consulted.[1] The consultation, however, between the Bishop and Inquisitor could be conducted through delegates. In insisting upon this, the Popes proved that they were anxious to give the sentences of the Inquisition every possible guarantee of perfect justice.
[1]Sexto, lib. v, tit. ii, cap. 17,Per hoc; Clementin. lib v. tit. iii, cap. i,Multorum querela.
Another way in which the Popes labored to render the sentences of the Inquisition just, was the institution of experts. As the questions which arose before the tribunals in matters of heresy were often very complex, "it was soon found requisite to associate with the Inquisitors in the rendering of sentences men versed in the civil and canon law, which had by this time become an intricate study, requiring the devotion of a lifetime. Accordingly they were empowered to call in experts to deliberate with them over the evidence, and advise with them on the sentence to be rendered."[1]
[1] Lea, op. cit., vol. i. p. 388.
The official records of the sentences of the Inquisition frequently mention the presence of these experts,peritiandboni viri. Their number, which varied according to circumstances, was generally large. At a consultation called by the Inquisitors in January, 1329, at the Bishop's palace in Pamiers, there were thirty-five present, nine of whom were jurisconsults; and at another in September, 1329, there were fifty-one present, twenty of whom were civil lawyers.
"At a comparatively early date, the practice was adopted of allowing a number of culprits to accumulate, whose fate was determined and announced in a solemnSermoorauto-da-fé. In the final shape which the assembly of counsellors assumed, we find it summoned to meet on Fridays, theSermoalways taking place on Sundays. When the number of criminals was large, there was not much time for deliberation in special cases. The assessors were always to be jurists and Mendicant Friars, selected by the Inquisitor in such numbers as he saw fit. They were severally sworn on the Gospels to secrecy, and to give good and wise counsel, each one according to his conscience, and to the knowledge vouchsafed him by God. The Inquisitor then read over his summary of each case, sometimes withholding the name of the accused, and they voted the sentence, "Penance at the discretion of the Inquisitor"—"that person is to be imprisoned, or abandoned to the secular arm"—while the Gospels lay on the table to so that our judgment might come from the face of God, and our eyes might see justice."[1]
[1] Lea, op. cit., vol. i, p. 389.
We have here the beginnings of our modern jury. As a rule, the Inquisitors followed the advice of their counsellors, save when they themselves favored a less severe sentence. The labor of these experts was considerable, and often lasted several days. "A brief summary of each case was submitted to them. Eymeric maintained that the whole case ought to be submitted to them; and that was undoubtedly the common practice. But Pegna, on the other hand, thought it was better to withhold from the assessors the names of both the witnesses and the prisoners. He declares that this was the common practice of the Inquisition, at least as far as the names were concerned. This was also the practice of the Inquisitors of southern France, as Bernard Gui tells us. The majority of the counsellors received a brief summary of the case, the names being withheld. Only a very few of them were deemed worthy to read the full text of all the interrogatories."[1]
[1] Tanon, op. cit., p. 421.
We can readily see how theperitiorboni viri, who were called upon to decide the guilt or innocence of the accused from evidence considered in the abstract, without any knowledge of the prisoners' names or motives, could easily make mistakes. In fact, they did not have data enough to enable them to decide a concrete case. For tribunals are to judge criminals and not crimes, just as physicians treat sick people and not diseases in the abstract. We know that the same disease calls for a different treatment in different individuals; in like manner a crime must be judged with due reference to the mentality of the one Who has committed it. The Inquisition did not seem to understand this.[1]
[1] Even in our day the jury is bound to decide on the merits of the case submitted to it, without regarding the consequences of its verdict. The foreman reminds the jurymen in advance that "they will be false to their oath if, in giving their decision, they are biased by the consideration of the punishment their verdict will entail upon the prisoner."
The assembly of experts, therefore, instituted by the Popes did not obtain the good results that were expected. But we must, at least, in justice admit that the Popes did their utmost to protect the tribunals of the Inquisition from the arbitrary action of individual judges, by requiring the Inquisitors to consult both theboni viriand the Bishops.
Over the various penalties of the Inquisition, the Popes likewise exercised a supervision which was always just and at times most kindly.
The greatest penalties which the Inquisition could inflict were life imprisonment, and abandonment of the prisoner to the secular arm. It is only with regard to the first of these penalties that we see the clemency of both Popes and Councils. Any one who considers the rough manners of this period, must admit that the Church did a great deal to mitigate the excessive cruelty of the medieval prisons.
The Council of Toulouse, in 1229, decreed that repentant heretics "must be imprisoned, in such a way that they could not corrupt others." It also declared that the Bishop was to provide for the prisoners' needs out of their confiscated property. Such measures betoken an earnest desire to safeguard the health, and to a certain degree the liberty of the prisoners. In fact, the documents we possess prove that the condemned sometimes enjoyed a great deal of freedom, and were allowed to receive from their friends an additional supply of food, even when the prison fare was ample.
But in many places the prisoners, even before their trial, were treated with great cruelty. "The papal orders were that they (the prisons) should be constructed of small, dark cells for solitary confinement, only taking care that theenormis rigorof the incarceration should not extinguish life."[1] But this last provision was not always carried out. Too often the prisoners were confined in narrow cells full of disease, and totally unfit for human habitation. The Popes, learning this sad state of affairs, tried to remedy it. Clement V was particularly zealous in his attempts at prison reform.[2] That he succeeded in bettering, at least for a time, the lot of these unfortunates, in whom he interested himself, cannot be denied.[3]
[1] Lea, op. cit., vol. i, p. 491.
[2] He ordered that the prisons be kept in good condition, that they be looked after by both Bishop and Inquisitor, each of whom was to appoint a jailer who would keep the prison keys, that all provisions sent to the prisoners should be faithfully given them, etc. Cf. DecretalMultorum querelain Eymeric,Directorium, p. 112.
[3] His legates Pierre de la Chapelle and Béranger fr Frédol visited in April, 1306, the prisons of Carcassonne and Albi, changed the jailers, removed the irons from the prisoners, and made others leave the subterranean cells in which they had been confined. Douais,Documents, vol. ii, p. 304 seq. Cf. Compayré, Études historiques sur l'Albigeois, pp. 240-245.
If the reforms he decreed were not all carried out, the blame must be laid to the door of those appointed to enforce them. History frees him from all responsibility.
The part played by the Popes, the Councils, and the Inquisitors in the infliction of the death penalty does not appear in so favorable a light. While not directly participating in the death sentences, they were still very eager for the executions of the heretics they abandoned to the secular arm. This is well attested by both documents and facts.
Lucius III, at the Council of Verona in 1184, ordered sovereigns to swear, in the presence of their Bishops, to execute fully and conscientiously the ecclesiastical and civil laws against heresy. If they refused or neglected to do this, they themselves were liable to excommunication and their rebellious cities to interdict.[1]
[1] DecretalAd abolendam, in the Decretals, cap. ix,De Hæreticis, lib. v, tit. vii. Cf. Sexto, lib. v, tit. ii, c. 2.Ut Officium; Council of Arles, 1254, can. iii; Council of Béziers, 1246, can. ix.
Innocent IV, in 1252, enacted a law still more severe, insisting on the infliction of the death penalty upon heretics. "When," he says, "heretics condemned by the Bishop, his Vicar, or the Inquisitors, have been abandoned to the secular arm, the podestà or ruler of the city must take charge of them at once, and within five days enforce the laws against them."[1]
[1] Eymeric,Directorium, Appendix. p. 8.
This law, or rather the bullAd Extirpanda, which contains it, was to be inscribed in perpetuity in all the local statute books. Any attempt to modify it was a crime, which condemned the offender to perpetual infamy, and a fine enforced by the ban. Moreover, each podestà, at the beginning and end of his term, was required to have this bull read in all places designated by the Bishop and the Inquisitors, and to erase from the statute books all laws to the contrary.
At the same time, Innocent IV issued instructions to the Inquisitors of upper Italy, urging them to have this bull and the edicts of Frederic II inserted in the statutes of the various cities.[1] And to prevent mistakes being made as to which imperial edicts he wished enforced, he repeated these instructions in 1254, and inserted in one of his bulls the cruel laws of Frederic II, viz., the edict of Ravenna,Commissis nobis, which decreed the death of obdurate heretics; and the Sicilian law,Inconsutilem tunicam, which expressly decreed that such heretics be sent to the stake.
[1] Cf. the bullsCum adversus, Tunc potissime, Ex Commissis nobis, etc., in Eymeric, ibid., pp. 9-12.
These decrees remained the law as long as the Inquisition lasted. The bullAd Extirpandawas, however, slightly modified from time to time. "In 1265, Clement IV again went over it, carefully making some changes, principally in adding the word 'Inquisitors' in passages where Innocent had only designated the Bishops and Friars, thus, showing that the Inquisition had, during the interval, established itself as the recognized instrumentality in the prosecution of heresy, and the next year he repeated Innocent's emphatic order to the Inquisitors to enforce the insertion of his legislation and that of his predecessors upon the statute books everywhere, with the free use of excommunication and interdict."[1]
[1] Lea, op. cit., vol. i, p. 339.
A little later, Nicholas IV, who during his short pontificate (1288-1292), greatly favored the Inquisition in its work, re-enacted the bulls of Innocent IV and Clement IV, and ordered the enforcement of the laws of Frederic II, lest, perchance, they might fall into desuetude.[1]
[1]Registers, published by Langlois, no. 4253.
It is therefore proved beyond question that the Church, in the person of the Popes, used every means at her disposal, especially excommunication, to compel the State to enforce the infliction of the death penalty upon heretics. This excommunication, moreover, was all the more dreaded, because, according to the canons, the one excommunicated, unless absolved front the censure, was regarded as a heretic himself within a year's time, and was liable therefore to the death penalty.[1] The princes of the day, therefore, had no other way of escaping this penalty, except by faithfully carrying out the sentence of the Church.
[1] Alexander IV decreed this penalty against the contumacious. Sexto,De Hæreticis, cap. vii. Boniface VIII extended it to those princes and magistrates who did not enforce the sentences of the Inquisition. Sexto,De Hæreticis, cap. xviii in Eymeric, 2a pars, p. 110.
. . . . . . . .
The Church is also responsible for having introduced torture into the proceedings of the Inquisition. This cruel practice was introduced by Innocent IV in 1252.
Torture had left too terrible an impression upon the minds of the early Christians to permit of their employing it in their own tribunals. The barbarians who founded the commonwealths of Europe, with the exception of the Visigoths, knew nothing of this brutal method of extorting confessions. The only thing of the kind which they allowed was flogging, which, according to St. Augustine, was rather akin to the correction of children by their parents. Gratian, who recommends it in hisDecretum,[1] lays it down as an "accepted rule of canon law that no confession is to be extorted by torture."[2] Besides, Nicholas I, in his instructions to the Bulgarians, had formally denounced the torturing of prisoners.[3] He advised that the testimony of three persons be required for conviction; if these could not be obtained, the prisoner's oath upon the Gospels was to be considered sufficient.
[1]Causav, quæst. v, Illi qui, cap. iv.
[2]Causaxv, quæst, vi, cap. i.
[3]Responsa ad Consulta Bulgarorum, cap. lxxxvi, Labbe,Concilia, vol. viii, col. 544.
The ecclesiastical tribunals borrowed from Germany another method of proving crime, viz., the ordeals, or judgments of God.
There was the duel, the ordeal of the cross, the ordeal of boiling water, the ordeal of fire, and the ordeal of cold water. They had a great vogue in nearly all the Latin countries, especially in Germany and France. But about the twelfth century they deservedly fell into great disfavor, until at last the Popes, particularly Innocent III, Honorius III, and Gregory IX, legislated them out of existence.[1]
[1]Decretals, lib. v, tit. xxxv, cap. i-iii. Cf. Vacandard,L'Église et les OrdaliesinÉtudes de critique et d'histoire, 3d ed., Paris, 1906, pp. 191-215.
At the very moment the popes were condemning the ordeals, the revival of the Roman law throughout the West was introducing the customs of antiquity. It was then "that jurists began to feel the need of torture, and accustom themselves to the idea of its introduction." "The earliest instances with which I have met," writes Lea, "occur in the Veronese code of 1228, and the Sicilian constitutions of Frederic II in 1231, and in both of these the references to it show how sparingly and hesitatingly it was employed. Even Frederic, in his ruthless edicts, from 1220 to 1239, makes no allusion to it, but in accordance with the Verona decree of Lucius III, prescribes the recognized form of canonical purgation for the trial of all suspected heretics."[1]
[1] Lea, op. cit., vol. i, p. 421.
The use of torture, as Tanon has pointed out, had perhaps never been altogether discontinued. Some ecclesiastical tribunals, at least in Paris, made use of it in extremely grave cases, at the close of the twelfth andd beginning of the thirteenth centuries.[1] But this was exceptional: in Italy, apparently, it had never been used.
[1] Tanon, op. cit., pp. 362-373.
Gregory IX ignored all references to torture made in the Veronese code, and the constitutions of Frederic II. But Innocent IV, feeling undoubtedly that it was a quick and effective method for detecting criminals, authorized the tribunals of the Inquisition to employ it. In his bullAd Extirpanda, he says: "The podestà or ruler (of the city) is hereby ordered to force all captured heretics to confess and accuse their accomplices by torture which will not imperil life or injure limb, just as thieves and robbers are forced to accuse their accomplices, and to confess their crimes; for these heretics are true thieves, murderers of souls, and robbers of the sacraments of God."[1] The Pope here tries to defend the use of torture, by classing heretics with thieves and murderers. A mere comparison is his only argument.
[1] BullAd Extirpanda, in Eymeric,Directorium, Appendix, p. 8.
This law of Innocent IV was renewed and confirmed November 30, 1259, by Alexander IV,[1] and again on November 3, 1265, by Clement IV.[2] The restriction of Innocent III to use torture "which should not imperil life or injure limb" (Cogere citra membri diminutionem et mortis periculum), left a great deal to the discretion of the Inquisitors. Besides flogging, the other punishments inflicted upon those who refused to confess the crime of which they were accused were antecedent imprisonment, the rack, thestrappado, and the burning coals.
[1] Potthast,Regesta, no. 17714.
[2] Ibid., no. 19433.
When after the first interrogatory the prisoner denied what the Inquisitors believed to be very probable or certain, he was thrown into prison. Thedurus carcer et arcta vitawas deemed an excellent method of extorting confessions.
"It was pointed out," says Lea, "that judicious restriction of diet not only reduced the body, but weakened the will, and rendered the prisoner less able to resist alternate threats of death and promises of mercy. Starvation, in fact, was reckoned one of the regular and most efficient methods to subdue unwilling witnesses and defendants."[1] This was the usual method employed in Languedoc. "It is the only method," writes Mgr. Douais,[2] "to to extort confessions mentioned either in the records of the notary of the Inquisition of Carcassonne[3] or in the sentences of Bernard Gui. It was also the practice of the Inquisitors across the Rhine."
[1] Lea, op. cit., vol. i, p. 421.
[2] Douais,Documents, vol. i, p. ccxl.
[3] Douais,Documents, vol. ii, p. 115 and seq.
Still the use of torture, especially of the rack and thestrappado, was not unknown in southern Europe, even before the promulgation of Innocent's bullAd Extirpanda.
The rack was a triangular frame, on which the prisoner was stretched and bound, so that he could not move. Cords were attached to his arms and legs, and then connected with a windlass, which, when turned, dislocated the joints of the wrists and ankles.
Thestrappadoor vertical rack was no less painful. The prisoner with his hands tied behind his back was raised by a rope attached to a pulley and windlass to the top of a gallows, or to the ceiling of the torture chamber; he was then let fall with a jerk to within a few inches of the ground. This was repeated several times. The cruel torturers sometimes tied weights to the victim's feet to increase the shock of the fall.
The punishment of burning, "although a very dangerous punishment," as an Inquisitor informs us, was occasionally used. We read of an official of Poitiers, who, following a Toulousain custom, tortured a sorceress by placing her feet on burning coals (juxta carbones accensos). This punishment is described by Marsollier in hisHistoire de l'Inquisition. First a good fire was started; then the victim was stretched out on the ground, his feet manacled, and turned toward the flame. Grease, fat, or some other combustible substance was rubbed upon them, so that they were horribly burned. From time to time a screen was placed between the victim's feet and the brazier, that the Inquisitor might have an opportunity to resume his interrogatory.
Such methods of torturing the accused were so detestable, that in the beginning the torturer was always a civil official, as we read in the bull of Innocent IV. The canons of the Church, moreover, prohibited all ecclesiastics from taking part in these tortures, so that the Inquisitor who, for whatever reason, accompanied the victim into the torture chamber, was thereby rendered irregular, and could not exercise his office again, until he had obtained the necessary dispensation. The tribunals complained of this cumbrous mode of administration, and declared that it hindered them from properly interrogating the accused. Every effort was made to have the prohibition against clerics being present in the torture chamber removed. Their object was at last obtained indirectly. On April 27, 1260, Alexander IV authorized the Inquisitors and their associates to mutually grant all the needed dispensations for irregularities that might be incurred.[1] This permission was granted a second time by Urban IV, August 4, 1262;[2] it was practically an authorization to assist at the interrogatories at which torture was employed. From this time the Inquisitors did not scruple to appear in person in the torture chamber. The manuals of the Inquisition record this practice and approve it.[3]
[1] Douais,Documents, vol. i, p. xxv, n. 3.
[2]Regesta, no. 18390.
[3] Eymeric,Directorium, 3a pars, p. 481.
Torture was not to be employed until the judge had been convinced that gentle means were of no avail.[1] Even in the torture chamber, while the prisoner was being stripped of his garments and was being bound, the Inquisitor kept urging him to confess his guilt. On his refusal, thevexatiobegan with slight tortures. If these proved ineffectual, others were applied with gradually increased severity; at the very beginning, the victim was shown all the various instruments of torture, in order that the mere sight of them might terrify him into yielding.[2]
[1] A grave suspicion against the prisoner was required before he could be tortured.
[2] Eymeric,Directorium, 3a pars, p. 481, col. 1.
The Inquisitors realized so well that such forced confessions were valueless, that they required the prisoner to confirm them after he had left the torture chamber. The torture was not to exceed a half hour. "Usually," writes Lea, "the procedure appears to be that the torture was continued until the accuser signified his readiness to confess, when he was unbound and carried into another room where his confession was made. If, however, the confession was extracted during the torture, it was read over subsequently to the prisoner, and he was asked if it were true…. In any case, the record was carefully made that the confession was free and spontaneous, without the pressure of force or fear."[1]
[1] Lea, op. cit., vol. i. p. 427.
"It is a noteworthy fact, however, that in the fragmentary documents of inquisitorial proceedings which have reached us, the references to torture are singularly few…. In the six hundred and thirty-six sentences borne upon the register of Toulouse from 1309 to 1323, the only allusion to torture is in the recital of the case of Calvarie, but there are numerous instances in which the information wrung from the convicts who had no hope of escape, could scarce have been procured in any other manner. Bernard Gui, who conducted the Inquisition of Toulouse during this period, has too emphatically expressed his sense of the utility of torture on both principals and witnesses for us to doubt his readiness in its employment."[1]
[1] Lea, op. cit., p. 424.
Besides, the investigation which Clement V ordered into the iniquities of the Inquisition of Carcassonne, proves clearly that the accused were frequently subjected to torture.[1] That we rarely find reference to torture in the records of the Inquisition need not surprise us. For in the beginning, torture was inflicted by civil executioners outside of the tribunal of the Inquisition; and even later on, when the Inquisitors were allowed to take part in it, it was considered merely a means of making the prisoner declare his willingness to confess afterwards. A confession made under torture had no force in law; the second confession only was considered valid. That is why it alone, as a rule, is recorded.
[1] Clement V required the consent of the Inquisitor and the local Bishop before a heretic could be tortured,vel tormentis exponere illis. DecretalMultorum querela, in Eymeric,Directorium, 2a pars, p. 112.
But if the sufferings of the victims of the Inquisition were not deemed worthy of mention in the records, they were none the less real and severe. Imprudent or heartless judges were guilty of grave abuses in the use of torture. Rome, which had authorized it, at last intervened, not, we regret to say, to prohibit it altogether, but at least to reform the abuses which had been called to her attention. One reform of Clement V ordered the Inquisition never to use torture without the Bishop's consent, if he could be reached within eight days.[1]
[1] Decretal,Multorum querela.
"Bernard Gui emphatically remonstrated against this, as seriously crippling the efficiency of the Inquisition, and proposed to substitute for it the meaningless phrase that torture should only be usedwith mature and careful deliberation, but his suggestion was not heeded, and the Clementine regulations remained the law of the Church."[1]
[1] Lea, op. cit., vol. i, p. 424; Bernard Gui,Practica, ed. Douais, 4a pars, p. 188.
The code of the Inquisition was now practically complete, for succeeding Popes made no change of any importance. The data before us prove that the Church forgot her early traditions of toleration, and borrowed from the Roman jurisprudence, revived by the legists, laws and practices which remind one of the cruelty of ancient paganism. But once this criminal code was adopted, she endeavored to mitigate the cruelty with which it was enforced. If this preoccupation is not always visible—and it is not in her condemnation of obdurate heretics—we must at least give her the credit of insisting that torture "should never imperil life or injure limb:"Cogere citra membri diminutionem et mortis periculum.
We will now ask how the theologians and canonists interpreted this legislation, and how the tribunals of the Inquisition enforced it.
THE gravity of the crime of heresy was early recognized in theChurch. Gratian discussed this question in a special chapter of hisDecretum.[1] Innocent III, Guala, the Dominican, and the EmperorFrederic II, as we have seen, looked upon heresy as treason againstAlmighty God, i.e., the most dreadful of crimes.
[1]Causaxxii, q. vii, cap. 16.
The theologians, and even the civil authorities, did not concern themselves much with the evil effects of heresy upon the social order, but viewed it rather as an offense against God. Thus they made no distinction between those teachings which entailed injury on the family and on society, and those which merely denied certain revealed truths. Innocent III, in his constitution of September 23, 1207, legislated particularly against the Patarins, but he took care to point out that no heretic, no matter what the nature of his error might be, should be allowed to escape the full penalty of the law.[1] Frederic II spoke in similar terms in his Constitutions of 1220, 1224, and 1232. This was the current teaching throughout the Middle Ages.
[1] Ep. x, 130.
But it is important to know what men then understood by the word heresy. We can ascertain this from the theologians and canonists, especially from St. Raymond of Pennafort and St. Thomas Aquinas. St. Raymond gives four meanings to the word heretic, but from the standpoint of the canon law he says: "A heretic is one who denies the faith."[1] St. Thomas Aquinas is more accurate. He declares that no one is truly a heretic unless he obstinately maintains his error, even after it has been pointed out to him by ecclesiastical authority. This is the teaching of St. Augustine.[2]
[1] S. Raymundi,Summa, lib. i, cap.De Hæreticis, sect. i, Roman Edition, 1603, p. 39.
[2]Summa, IIa, IIae, quæst. xi, Conclusio; cf. ibid., ad 3um, quotations from St. Augustine.
But by degrees the word, taken at first in a strict sense, acquired a broader meaning. St. Raymond includes schism in the notion of heresy. "The only difference between these two crimes," he writes, "is the difference between genus and species;" every schism ends in heresy. And relying on the authority of St. Jerome, the rigorous canonist goes so far as to declare that schism is even a greater crime than heresy. He proves this by the fact that Core, Dathan, and Abiron,[1] who seceded from the chosen people, were punished by the most terrible of punishments. "From the enormity of the punishment, must we not argue the enormity of the crime?" St. Raymond therefore declares that the same punishment must be inflicted upon the heretic and the schismatic.[2]
[1] Num. xvi. 31-33.
[2] Loc. cit., lib. i, cap.De Schismaticis, pp. 45-47
"The authors of the treatises on the Inquisition," writes Tanon, "classed as heretics all those who favored heresy, and all excommunicates who did not submit to the Church within a certain period. They declared that a man excommunicated for any cause whatever, who did not seek absolution within a year, incurred by this act of rebellion a light suspicion of heresy; that he could then be cited before the Inquisitor to answer not only for the crime which had caused his excommunication, but also for his orthodoxy. If he did not answer this second summons, he was at once considered excommunicated for heresy, and if he remained under this second excommunication for a year, he was liable to be condemned as a real heretic. The light suspicion caused by his first excommunication became in turn a vehement and then a violent suspicion which, together with his continued contumacy, constituted a full proof of heresy."[1]
[1] Tanon, op. cit., pp. 235, 236.
The theologians insisted greatly upon respect for ecclesiastical and especially Papal authority. Everything that tended to lessen this authority seemed to them a practical denial of the faith. The canonist Henry of Susa (Hostiensis + 1271), went so far as to say that "whoever contradicted or refused to accept the decretals of the Popes was a heretic."[1] Such disobedience was looked upon as a culpable disregard of the rights of the papacy, and consequently a form of heresy.
[1] In Baluze-Mansi,Miscellanea, vol. ii. p. 275.
Superstition was also classed under the heading of heresy. The canonist Zanchino Ugolini tells us that he was present at the condemnation of an immoral priest, who was punished by the Inquisitors not for his licentiousness, but because he said Mass every day in a state of sin, and urged in excuse that he considered himself pardoned by the mere fact of putting on the sacred vestments.[1]
[1]Tractat. de Hæret., cap. ii.
The Jews, as such, were never regarded as heretics. But the usury they so widely practiced evidenced an unorthodox doctrine on thievery, which made them liable to be suspected of heresy. Indeed, we find several Popes upbraiding them "for maintaining that usury is not a sin." Some Christians also fell into the same error, and thereby became subject to the Inquisition. Pope Martin V, in his bull of November 6, 1419., authorizes the Inquisitors to prosecute these usurers.[1]
[1] BullInter cætera, sent to the Inquisitor Pons Feugeyron.
Sorcery and magic were also put on a par with heresy. Pope Alexander IV had decided that divination and sorcery did not fall under the jurisdiction of the Inquisition, unless there was manifest heresy involved.[1] But casuists were not wanting to prove that heresy was involved in such cases. The belief in the witches' nightly rides through the air, led by Diana or Herodias of Palestine, was very widespread in the Middle Ages, and was held by some as late as the fifteenth century. The question whether the devil could carry off men and women was warmly debated by the theologians of the time. "A case adduced by Albertus Magnus, in a disputation on the subject before the Bishop of Paris, and recorded by Thomas of Cantimpré, in which the daughter of the Count of Schwalenberg was regularly carried away every night for several hours, gave immense satisfaction to the adherents of the new doctrine, and eventually an ample store of more modern instances was accumulated to confirm Satan in his enlarged privileges."[2] Satan, it seems, imprinted upon his clients an indelible mark, thestigma diabolicum.
[1] Bull of December 9, 1257.
[2] Lea, op. cit., vol. iii, p. 497.
"In 1458, the Inquisitor Nicholas Jaquerius remarked reasonably enough that even if the affair was an illusion, it was none the less heretical, as the followers of Diana and Herodias were necessarily heretics in their waking hours."[1]
[1] Lea, op. cit., pp. 497, 498.
About 1250, the Inquisitor Bernard of Como taught categorically that the phenomena of witchcraft, especially the attendance at the witches' Sabbath, were not fanciful but real: "This is proved," he says, "from the fact that the Popes permitted witches to be burned at the stake; they would not have countenanced this, if these persons were not real heretics, and their crimes only imaginary, for the Church only punishes proved crimes."[1] Witchcraft was, therefore, amenable to the tribunals of the lnquisition.[2]
[1]Lucerna Inquisitorium, Romæ, 1584, p. 144.
[2] In a letter to one of the cardinals of the Holy Office, dated 1643, witchcraft is classed with heresy. Douais,Documents, vol. i, p. ccliv. In practice, the heretical tendency of witchcraft was hard to determine. Each judge, therefore, as a rule, pronounced sentence according to his own judgment.
While the casuists thus increased the number of crimes which the Inquisition could prosecute, on the other hand, they shortened the judicial procedure then in vogue.
Following the Roman law, the Inquisition at first recognized three forms of action in criminal cases—accusatio, denuntiatio, andinquisitio. In theaccusatio, the accuser formally inscribed himself as able to prove his accusation; if he failed to do so, he had to undergo the penalty which the prisoner would have incurred (poena talionis).[1] "From the very beginning, he was placed in the same position as the one he accused, even to the extent of sharing his imprisonment."[2] Thedenuntiatiodid not in any way bind the accuser; he merely handed in his testimony, and then ceased prosecuting the case; the judge at once proceeded to take action against the accused. In theinquisitio, there was no one either to accuse or denounce the criminal; the judge cited the suspected criminal before him and proceeded to try him. This was the most common method of procedure; from it the Inquisition received its name.[3]
[1] Tanon, op. cit., p. 260, n. 4.
[2] Tancrède,Ordo judiciorum, lib. ii.
[3] On these three forms of action, cf. Eymeric,Directorium, 3a pars, p. 413 et seq.
The Inquisitorial procedure was therefore inspired by the Roman law. But in practice theaccusatio, which gave the prisoner a chance to meet the charges against him, was soon abandoned. In fact the Inquisitors were always most anxious to set it aside. Urban IV enacted a decree, July 28, 1262, whereby they were allowed to proceedsimpliciter et de plano, absque advocatorum strepitu et figura.[1] Bernard Gui insisted on this in hisPractica.[2] Eymeric advised his associates, when an accuser appeared before them who was perfectly willing to accept thepoena talionisin case of failure, to urge the imprudent man to withdraw his demand. For he argued that theaccusatiomight prove harmful to himself, and besides give too much room for trickery.[3] In other words, the Inquisitors wished to be perfectly untrammeled in their action.
[1] BullPræ cunctisof July 28, 1262.
[2]Practica, 4a pars. ed. Douais, p. 192.
[3]Directorium, p. 414. col. 1.
The secrecy of the Inquisition's procedure was one of the chief causes of complaint.
But the Inquisition, dreadful as it was, did not lack defenders. Some of their arguments were most extravagant and far-fetched. "Paramo, in the quaint pedantry with which he ingeniously proves that God was the first Inquisitor, and the condemnation of Adam and Eve the first model of the Inquisitorial process, triumphantly points out that he judges them in secret, thus setting the example which the Inquisition is bound to follow, and avoiding the subtleties which the criminals would have raised in their defence, especially at the suggestion of the crafty serpent. That he called no witnesses is explained by the confession of the accused, and ample legal authority is cited to show that these confessions were sufficient to justify the conviction and punishment."[1]
[1] Lea, op. cit., vol. i, p. 406.
. . . . . . . .
The subtlety of the casuists had full play when they came to discuss the torture of the prisoner who absolutely refused to confess. According to law, the torture could be inflicted but once, but this regulation was easily evaded. For it was lawful to subject the prisoner to all the various kinds of torture in succession; and if additional evidence were discovered, the torture could be repeated. When they desired, therefore, to repeat the torture, even after an interval of some days, they evaded the law by calling it technically not a "repetition" but a "continuance of the first torture:"Ad continuandum tormenta, non ad iterandum, as Eymeric styles it.[1] This quibbling of course gave full scope to the cruelty and the indiscreet zeal of the Inquisitors.
[1] Eymeric,Directorium, 3a pars, p. 481, col. 2.